Ten key ways to turn the new pre-claim procedure to your advantage
From 6 April we will be in the era of early conciliation. How should employers react when an Acas conciliation officer gets in touch to say that an employee has sent in notification that he or she intends to bring employment tribunal proceedings against your company? Old adversarial strategies for dealing with employee disputes are not necessarily the best way forward. A change of mindset is required and employers will need to evaluate risk and cost in a new way.
Given the level at which tribunal fees have been set, particularly for ‘Type B’ cases, some employers may be tempted to keep their counsel, refuse to engage, and wait and see if the employee actually does issue an ET1(employment tribunal claim form).
But it is doubtful things are going to be that simple. Here are some considerations for an alternative approach.
Top tips
- First, consider your risk exposure. You will need to know as much as possible about the prospective claim. You may ask as many questions as you like, including what employees are now doing, and what attempts they have made to mitigate their loss.
- Next consider not only the particular employee involved, but any others who might ‘jump on the band wagon’. You can estimate the likely legal costs if the matter is contested by more than one employee.
- Consider the array of possibilities for resolving the dispute, such as the different forms of mediation and ultimately tribunal litigation. They all involve fees. The services of an Acas conciliation officer do not.
- Think about timing. The early conciliation process involves a ‘stop the clock’ mechanism whereby the time limit for instituting tribunal proceedings is stayed by up to a month, and possibly an additional 14 days, in order to allow early conciliation to run its course. If either side refuses to engage, however, the early conciliation certificate is issued, and the claim timetable is resumed.
- Use early conciliation to your advantage. There is nothing to prevent an inquisitorial employer, possibly with little intention of settling, using the process to obtain more information about the other side and its case than would have been possible at an early stage under the old regime.
- Try to win over the Acas conciliation officer. Ensure you are familiar with the circumstances of the case, its strengths and weaknesses. It will help you to persuade Acas of the strengths of your own position.
- Remember that prospective claimants can bring an end to the process by simply telling the conciliation officer they do not want to engage in conciliation, or by not being contactable within a reasonable period of time.
- There is no obligation on claimants to set out all their prospective claims. However, when it comes to agreeing a COT3 (Acas settlement form) or a settlement agreement, make sure all potential claims are settled, not just those that have been discussed.
- Remember that if early conciliation fails, and employees go on to win their case at a tribunal, the employer is likely to be ordered to pay the fees for issuing and hearing the claim.
- Finally, remember Acas is ‘on trial’ too. The service has funding for the next 12 months for the new early conciliation regime. Thereafter, who knows? In the meantime, conciliation officers are likely to want to make a success of your case.
Conclusion
Many more employers are likely to engage in the early conciliation process than has been predicted. It can certainly make sense to do so and employers should take the new system seriously for the benefits it may bring. The fact that tribunal fees have been set at such a high level may not mean workplace disputes disappear – they might just come back to haunt the employer in a different way.
Taken together, the introduction of employment tribunal fees and early conciliation represent a seismic shift in the way employment disputes should be handled. Employers should change their behaviour accordingly. The idea is to reduce the number of costly litigations which go all the way. Earlier settlement may be the new name of the game for all but the most extreme cases.
Richard Fox is head of employment law at Kingsley Napley and chairman of the Employment Lawyers Association
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